Skip to content


Mount Corporation and ors. Vs. Director of Industries and Commerce in Mysore, Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 2423 and 2581 of 1963 and 44, 124, 244, 267, 301 and 323 of 1964
Judge
Reported inAIR1965Kant143; AIR1965Mys143; ILR1964KAR994; (1964)1MysLJ513
ActsImports and Exports (Control) Act, 1947; Imports (Control) Order, 1955; Constitution of India - Article 226; Code of Civil Procedure (CPC), 1908 - Order I, Rule I
AppellantMount Corporation and ors.
RespondentDirector of Industries and Commerce in Mysore, Bangalore and ors.
Excerpt:
- limitation act, 1963.[c.a. no. 36/1963]. article 57: [n. kumar, j] applicability of held, to apply article 57 of the limitation act, the suit must one for a declaration that an adoption is invalid. it is only when the prayer in the suit is for a declaration that an adoption is invalid, in such a case article 57 would apply. further, article 57 pre-supposes the plaintiff is directly or indirectly admitting the factum of adoption and a cloud is sought to be created on the right of the plaintiff to claim the property by way inheritance. the suit for partition cannot be treated as one for setting aside the adoption merely because one of the dependant set up a claim so as to attract the article of limitation act. therefore, article 57 is not attracted and the suit is not barred by time......govinda bhat, j.(1) these writ petitions arise under the imports and exports (control) act, 1947, (central act xviii of 1947), hereinafter called the act. the petitioners have challenged the actions of the state government (respondent 2) and the director of industries and commerce in mysore (respondent 1), taken in respect of the applications made by the petitioners for licences for import of stainless steel, for the period april-september, 1963, which resulted in the rejection of the applications by the assistant iron and steel controller, madras (respondent 3), on the ground that no essentiality certificate has been received from the sponsoring authority in the case of each one of the petitioners, and the petitioners have sought appropriate writs to quash the orders of respondent 3.....
Judgment:

Govinda Bhat, J.

(1) These Writ Petitions arise under the Imports and Exports (Control) Act, 1947, (Central Act XVIII of 1947), hereinafter called the Act. The petitioners have challenged the actions of the State Government (Respondent 2) and the Director of Industries and Commerce in Mysore (Respondent 1), taken in respect of the applications made by the petitioners for licences for import of stainless steel, for the period April-September, 1963, which resulted in the rejection of the applications by the Assistant Iron and Steel Controller, Madras (Respondent 3), on the ground that no Essentiality Certificate has been received from the Sponsoring Authority in the case of each one of the petitioners, and the petitioners have sought appropriate writs to quash the orders of Respondent 3 rejecting the applications, and for a mandamus to Respondent 1, the Director of Industries and Commerce, to follow the relevant rules and make his recommendations in accordance with law.

(2) Petitioners are manufacturers of stainless steel products, and they have their factories located either in Bangalore or other places within the State of Mysore. Stainless steel is not produced in India and therefore, requires to be imported from foreign countries under licences issued by the Licensing Authority constituted under the Act, for each licensing period. The Imports and Exports (Control) Act, 1947, has been enacted by the Central Legislature for the purpose of controlling imports and exports and section 3 thereof empowers the Central Government by Order published in the official Gazette, to make provisions for prohibiting restricting, or otherwise controlling the import and export of goods of any specified description.

In Exercise of the said powers, the Central Government made the order called 'The Imports (Control) Order, 1955'. Clause 3 of the said Order provides that, 'no person shall import any goods of the description specified in Schedule 1, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule II.' Clauses 4 to 10 make provision for making applications for Licences, the conditions subject to which the licence may be issued by the Licensing Authority, the refusal of licence, and the power to amend, suspend, or cancel the licence. In furtherance of the Act and the Order, the Union Government, from time to time, issues what is called 'Import Policy Statement' after examination of the needs of the country, the position of foreign exchange, the need to protect national industries, and all other relevant considerations. The import policy statement of the Government of India is published in the Gazette of India every year, and that is contained in the publication of the Government of India, popularly called the 'Red Book'.

(3) The petitioners who come under the category of actual users, were obtaining their import requirements under licences issued by the 3rd respondent, since about the year 1960. Pursuant to the Public Notice, dated 9th April, 1963, issued by the Iron and Steel Controller, Calcutta, on the subject of import licensing policy for the items licensable by the Iron and Steel Controller for the licensing period April-September, 1963, the petitioners, among others, made applications for licences to import stainless steel in accordance with the procedure prescribed by the regulations in the import control policy book for the year April, 1963-1964, and the Public Notice issued by the Iron and Steel Controller, Calcutta.

Para 4 of the Public Notice required the applicants to send two copies of their applications to the first respondent, who is the Sponsoring Authority, and the Sponsoring Authority was directed to retain one copy and forward the other copy of the application with his recommendation to Respondent 3, who is the licensing authority. The recommendations of the Sponsoring Authority is called the Essentiality Certificate. Respondent 1 did not issue the Essentiality Certificate so far as the petitioners are concerned and consequently, by order on November 19, 1963. Respondent 3 rejected the applications of the petitioners in Writ Petition No. 2423/63 and W. P. 267/64. By similar orders made on November 20, 1963, he rejected the applications of the petitioners in the rest of the writ petitions. The said orders, which have been impugned in these writ petitions, state that 'the applications of the Petitioners have been rejected as no Essentiality Certificate has been received from the Sponsoring Authority'. Aggrieved by the said orders of rejection, petitioners have sought the following reliefs from this court, under Article 226 of the Constitution of India

(a) to call for the records relating to the applications of the petitioners for the import of stainless steel for April--September 1963, and quash the orders of rejection made by 3rd respondent;

(b) to issue a writ of mandamus or any other appropriate direction directing the first respondent to follow Rules 41(a) and (b) read with Rule 46 of the Import Control Policy and make recommendations on the basis of uniform and equal criteria; and

(c) to issue an interim order to the 3rd respondent to suspend consideration of the recommendations made by the first respondent relating to the period April--September 1963 for issue of import licence until further orders of this Court.

(4) The grievance of the petitioners is mainly against respondents 1 and 2. The sole ground for rejection of their applications for license was, that the licensing authority respondent 3, did not receive the Essentiality Certificate from the Sponsoring Authority (respondent 1). Under the scheme of licensing imports laid down in the Import Policy Book, licenses for imports could be issued only on the basis of the Essentiality Certificates issued by the Sponsoring Authority. Therefore, there was no option left for respondent 3, but to reject the applications. The grievances of the petitioners against respondents 1 and 2, are that though under the scheme of import control regulations as laid down by the Act, the Order, and the Policy Statement, the power, of issuing Essentiality Certificates and making recommendations on the applications of actual users of stainless steel and other raw materials, vests exclusively in the Sponsoring Authority (respondent 1), that power under the device of a committee constituted by respondent 2 G.O. No. CI 101 GCS 63 dated March 29, 1963, has been encroached upon and usurped by respondent 2, the State Government, and respondent 1 after abdication his powers, has merely acted as the mouthpiece of the Committee in dealing with the application for licences and that since respondent 1 did not exercise his independent judgment in the matter of sponsoring the applications, but merely voiced the opinion of the Committee constituted by respondent 2, which it was incompetent to do, there has been no disposal of the applications of the petitioners as required by law, and the legal position is what they have never been disposed of in accordance with law. One other ground made by the petitioners against respondents 1 and 2, is, that no objective standard has been followed by the committee which has selected only 15 out of 100 applications for sponsoring and that the petitioners have been subjected to arbitrary and discriminatory treatment.

(5) The subject of regulation of imports is exclusively vested in the Union Government and that subject is wholly outside the executive and legislative fields reserved to the State Government. The Central legislature, by enacting the Act, has made provision for regulation of imports. In exercise of the powers conferred by S. 3 of the Act, the Government of India has made the Imports (Control) Order, 1955, and further, for each licensing period, issued regulations in their Import Policy statement. The licensing power under the Act and the order vested in the authorities constituted thereunder, is used as an effective weapon of regulation of imports, since power in conferred on the licensing authorities to revoke or to suspend licences which have been granted. The existence of the revoking or suspending power tends to cause continued compliance by those to whom licences have already been granted. The strength of such a device of licensing is obvious, for the right to pursue a given trade is dependent in its entirety upon the observance of prescribed standards of conduct. In this context, it is necessary to refer to Clauses 8, 9 and 10 of the Imports (Control) Order, 1955. They read thus:

'8. Power to suspend issue of license or to debar a license from receiving licenses the Central Government or the Chief Controller of Imports and Exports may suspend the issue of licences to a licensee importer or direct, without prejudice to any other action which may be taken in this behalf, that no license shall be granted to him for a specified period under this Order to such a licensee:

(a) if the application for such license is at any time found to be not in conformity with any provision of this Order;

(b) if such application is found to contain any false, fraudulent or misleading statement;

(c) it the licensee/importer is found to have used in support of the application any document which is false or fabricated or which has been tampered with;

(d) if the licensee/importer has on any occasion tampered with an import license or has imported goods without a license or has been a party to any corrupt or fraudulent practice in his commercial dealings;

(e) if the licensee/importer fails to comply with or contravenes any conditions embodied in, or accompanying. a licence or an application for a licence;

(f) if the licensing authority proposes to take action against the license for a breach of any of the conditions of the licence or of any law, rules or regulations relating to customs or the import and export of goods or of any law relating to the regulation of foreign exchange.

9.Cancellation of licences.--The Central Government or any other officer authorised in this behalf may cancel any licence granted under this order or otherwise render it ineffective;

(a) if the licence has been granted through inadvertence or mistake or has been obtained by fraud or misrepresentation;

(b) if the licence has been granted contrary to rules or the provisions of this Order;

(c) if the licensee committed a breach of any of the conditions of a licence;

(d) if the licensee has committed a breach of any law relating to customs or the rules and regulations relating to the import or export of goods or of any law relating to the regulations of foreign exchange.

10. Applicant or licensee to be heard.--No action shall be taken under clauses 7, 8 or 9, unless the licensee/importer has been given a reasonable opportunity of being heard.'

It is also necessary to refer to paragraph 51 of the Import Trade Control Policy Statement contained at page 23 of the Red Book, which reads:

'Misuse of A.U. Licences.- It has been reported that a number of actual users have diverted to other channels or uses the raw materials and consumable stores licensed for use in their factories. Attention of the actual users is drawn to the condition which is endorsed upon each licence to the effect that the goods will be utilised only for this purpose for which they have been obtained, in the licence holder's factory and that no portion thereof will be sold to, or permitted to be utilised by any other party. Steps are being taken to ensure that this condition is strictly observed. If any holder of a licence infringes the aforesaid condition he will be liable to be debarred from obtaining any licences in future, without prejudice to any other action which may be taken under the Imports and Exports (Control) Act, 1947, and the Imports Control Order, 1955.'

(6) Thus, it is clear from the provisions mentioned above, that under the scheme of licensing laid down by the Central Government, if any actual user infringes the conditions of his licence, he could be debarred from obtaining any licence in future, or his existing licence could be suspended or cancelled. But all such action could be taken only after affording the opportunity of being heard. Though the State Government has no power whatever to interfere in the administration of the Act, respondent 2 (State of Mysore) made a Government Order on March 29, 1963 constituting a Committee to deal with the distribution of raw material like stainless steel, and to take effective steps to put down malpractices on the part of the quota holders. Respondent 1, who is the Sponsoring Authority, vested with the power of issuing Essentiality Certificate under the regulations made by the Central Government, was included as one of the four members of the Committee. It is necessary to set out in full the said Government Order.

'Sub : Distribution of Raw Material--Procedure--Committee.

Government of Mysore

(Commerce and Industries Department)

Government Order No. CI 1010 GCS 66, Bangalore,

dated the 29th March 1963

(Chitra 8, Saka Era 1885)

Preamble : A number of complaints are received from time to time in regard to the distribution of scarce raw material like copper, zinc, lead, stainless steel, etc., and it is considered desirable that a Committee should be constituted for solving the difficulties relating to distribution of raw materials and that effective steps should be taken to put down malpractices, if any, on the part of quota holders and others concerned, and to ensure that raw materials are allotted with due care and with reference to the genuine demands of Small Scale Industrialists. The Committee could with advantage have a follow up system by which misuse of raw materials supplied could be detected and effectively dealt with.

ORDER

A Committee with the following personnel is constituted with immediate effect and until further orders to deal with the distribution of raw materials and other allied matters as indicated in the preamble:

1. Deputy Minister of Mines & Geology Chairman

2. Director of Industries & Commerce Member

3. Joint Director of Industries & Commerce &Managing; Director,

Mysore Small Scale Industries Corporation Ltd., Member

4. Joint Director of Industries & Commerce, Small Scale Industries Member Secretary.

The Committee will meet as often as necessary and carry out inspections, including surprise inspection and investigations as frequently as possible.

In order to eliminate trading in quotas allotted by the Department it is hereby directed that the future stocks against quotas will be obtained by Mysore Small Industries Corporation Ltd., and issued to quota holders.

By order and in the name of Governor of Mysore.

30-3-63.

Sd/

S.N. Kalabhairavan,

Under Secretary to Government,

Commerce & Industries Department.'

It is clear from the preamble of the above order that the object of the constitution of the Committee was to deal with the distribution of raw materials like stainless steel and also to take effective steps to put down malpractices on the part of the quota holders. The case of the petitioners is that there were about 100 applicants for licences for import of stainless steel, from Mysore State, and that the above Government Order dealt with the said applications of the petitioners were not selected for recommendation. Respondent 1, the Sponsoring Authority, who was also a Member of the Committee, without exercising his own independent judgment, merely acted as a messenger for conveying the decision of the Committee to respondent 3.

(7) Respondent 1 has not filed any counter-affidavit; but on his behalf Sri Sundar Krishna Warrior, Joint Director of Small Scale Industries, has filed a counter-affidavit. He has no personal knowledge of the matters alleged in the affidavits filed in support of the writ petitions. In para (1) of the counter-affidavit he stated that he has acquainted himself with the facts of the case from the records, available, and on that basis, he traversed the allegations made in the affidavits of the petitioners. The fact that respondent 2 constituted a Committee, and that Committee considered the applications and decided to restrict the allotment to only about 15 persons out of about 100 applicants, are not disputed by the Joint Director. This is what he stated in paragraphs 6 and 7 of the counter-affidavit. (Not reported here--Ed.)

(8) The following facts are clearly established from the counter-affidavit filed on behalf of the respondents 1 and 2:

(1) that the committee examined the cases of the applicants for licences and decided to restrict the allotments to a few of the applicants selected by the Committee;

(2) the Committee decided that manufacturers of cutlery should not be allowed any quota;

(3) the Committee made the allocations to the different items of imports from out of the monetary ceiling of foreign exchange allotted by the Central Government and they made the allocation of two lakhs of rupees for stainless steel.

(4) The committee decided to recommend the applications of 15 persons only and to reject about 15 applications;

(5) The Committee comprised of four persons one of whom is a Deputy Minister of the Govt. of Mysore, and he is the Chairman of the Committee, and that the Sponsoring Authority, is an officer of the Government of Mysore;

(6) Respondent 1 abdicated the duty imposed on him pursuant to the Import (Control) Order and Regulations made by the Central Government, and be meekly submitted to the dictation of the Committee constituted by the State Government; and

(7) Respondent 1 implemented the decision of the Committee by recommending the applications of person selected by the Committee;

(9) It is no doubt contended on behalf of respondents 1 and 2, that the Committee was only an Advisory Committee and respondent 1 exercised his independent judgment. It has to be borne in mind, however, that respondent 1 is an Officer of the Government of Mysore, and it is not possible to expect of him to disregard the decision of the Committee constituted by the Government of Mysore, and presided over by a Deputy Minister of that Government. It is clearly admitted in the counter-affidavit filed on behalf of respondents 1 and 2 that the Committee decided to recommend the applications of only 15 applicants and to reject the applications of the petitioners, and pursuant to that decision, respondent 1 recommended only the cases of the applicants recommended by the Committee. In these circumstances, it is quite obvious that the actions of respondent 1 were really the actions of the Committee.

(10) Unlike in the Committee of United States of America, where there are two separate sets of officials, namely, Federal officials and States officials, under our Constitution though the field of legislative and executive actions of the Central Government and State Government are demarcated, the Central Government executes several of its functions through officers of the State Government are really discharging the functions of the Central Government and not of the State Government. The scheme of federation would be a myth if the State Government, by a clever device as in the instant case, could direct the actions of their officers when they exercise statutory powers in the discharge of the affairs of the Central Government.

Learned Government Pleader appearing for respondents 1 and 2, did not contest the proposition that respondent 2 has no power to regulate the import and consequently the constitution of the Committee to deal with the applications for licences is wholly ultra vires of the powers of the State Government. But the contention advanced on behalf of respondents 1 and 2 as set out in paragraph 15 of the Joint Director's counter-affidavit is, that the power exercised by the Sponsoring Authority is purely administrative in character, and therefore, the same is not open to question under Article 226 of the Constitution of India, in the absence of allegations of mala fides; and it was further contended that merely because the Sponsoring Authority acted on the advice of the Committee constituted by the State Government, the recommendation made by him would not be vitiated. Learned Government Pleader also pleaded that the petitioners have the alternate remedy of appeal against the orders of rejection of their applications, and since the petitioners have not chosen to avail to the statutory remedy of appeal, we should not grant any relief in exercise of our jurisdiction under Art. 226 of the Constitution of India.

(11) With regard to W. P. Nos. 2423/63, 2581/63 and 267/64, an additional objection has been raised as to the maintainability of the said petitions on the ground that they are joint petitions in which each of the petitioners complains of individual injury in his own right, and as such, joint petitions are not maintainable.

(12) The question of maintainability of joint petitions was argued and when we indicated our view that such petitions are not maintainable, the petitioners in the said petitions, with our leave got their petitions amended so as to remove this objection. In view of the amendment carried out by the patinas, the objection to the maintainability of the petitions on the ground that they are joint petitions does not survive. Sri. R.M. Seshadri, who argued the case on behalf of all the petitioners, did not contend that the joint petitions originally filed in W. P. Nos. 2423/63, 2581/63 and 267/64 were maintainable. In W. P. No. 2423/63, there were originally 23 petitioners, in W. P. No. 2581/63 there were 16 petitioners, and W. P. No. 267/64 there were 9 petitioners. But Sri. S.K. Vengataranga Iyengar, learned advocate, who appeared for these petitioners with Sri. R.M. Sheshadri, argued that according to the practice of this Court, such joint petitions are maintainable.

The petitioners in these joint petitions have their individual grievances though their grievances are similar. Each one of the petitioners is an applicant for a licence and his application was rejected by respondent 3. The question is whether the several petitioners who have their individual grievance and separate causes of action, are entitled to join together and maintain a single joint writ petition under Art. 226 of the Constitution on the ground that common questions of law and fact are involved in the case. In the High Court of Mysore Rules, 1959, made by this court in exercise of the powers conferred by Art. 225 of the Constitution the rules contained in Chapter VIII relate to writ petitions. There is rule providing for institution of joint writ petitions when common questions of law and fact are involved. A bench of this court in Govt. Press Employees Association v. Govt. of Mysore, 39 Mys LJ 565: (AIR 1962 Mys 25) held:

'that the fact that the reason or the basis for grievance of several persons may be the same, does not convert the separate grievance of the several individuals into a common grievance of a class so as to entitle them to maintain a joint writ petition'

Sri. S.K. Venkataranga Iyengar argued, that the provisions of Order I, Rule I of the Code of Civil Procedure are applicable to writ petitions in the absence of special rules made by the High Court in exercise of its power under Article 225 of the Constitution, and that joint petition is maintainable where common questions of law and fact arise. In support of that contention, he relied on a bench decision of the Andhra Pradesh High Court, in Annam Adinarayana v. State of Andhra Pradesh, : AIR1958AP16 . It was held in that decision that the petitioners were aggrieved by a single act of the Collector, and a common question of law and fact arose and, therefore, a joint application was maintainable. Shri. Iyengar also relied on a decision of the Rajasthan High Court to the same effect in Qurabali v. Govt. of Rajasthan, . The learned Government Pleader who contended that joint petitions are not maintainable relied on bench decisions of the High Courts of Madras, Allahabad and Gujarat.

The decision of the High Court of Madras in Rainbow Dyeing Factory v. Industrial Tribunal, Madras, : AIR1959Mad137 has exhaustively considered this question Reference is made in that decision to the practice, obtaining in, England and U.S.A. In England two persons cannot join in a single application for an order of mandamus to enforce separate claims. In U.S.A., persons having a common and joint interest in the subject matter in controversy, may be joint relaters in mandamus; but persons having similar but wholly separate and distinct interests in the subject matter of controversy are not entitled to join as relaters in a mandamus. After an exhaustive consideration of the case law and provisions of Order I Rule I of C.P.C. and also the decision of the Andhra Pradesh High Court, the High Court of Madras held, that where a number of persons have a common or joint interest in the subject matter for the controversy they may join together and file a single writ petition but persons having similar but wholly separate and distinct interests in the subject matter in controversy, should file separate petitions though common questions of law the decisions, in Uma Shankar Rai v. Divisional Supdt. Northern Rly. Lucknow, : AIR1960All366 and Ramchand Nihalchand v. Anandlal Bapalal : AIR1962Guj21 .

(13) The jurisdiction vested in the High Court under Art. 226 of the Constitution is a special original jurisdiction. In the absence of special rules made by the High Court in exercise of its power under Art. 225 of the Constitution, in the very nature of proceedings under Art. 226 of the Constitution, it appears to us, that the provisions of Order I, Rule I of the Code of Civil Procedure are not applicable to writ petitions. We are in respectful agreement with the view expressed in the decision of the Madras High Court, that persons having common and joint interest in the subject matter of controversy may be joined as petitioners in one writ petition, while those having separate and distinct rights cannot. It is unnecessary for us to deal with this matter in detail since Sri. Venkataranga Iyengar did not press the matter further, and he sought our leave to amend the petitions so as to remove the objection. We have adverted to this matter so as to settle the question and leave no doubt as to the practice of this court in the matter of institution of joint writ petition.

(14) The Government Order constituting a Committee for distribution of raw materials is not sought to be supported on the basis of any statutory power vested in the State Government. Neither the Act nor the Import (Control) Order, 1955 vests any power in the State Government to constitute such a Committee. The Director of Industries and Commerce who is an Officer of the State Government, no doubt has been vested with the power of issuing Essentiality Certificates for the purpose of grant of licenses for imports. But that power is vested in an Officer of the State Government by virtue of an order made by the Central Government, which has undoubted powers in the matter. The extent of the executing power of the State Government is laid down by Art. 162 of the Constitution, which states:

'Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make Laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.'

As already stated, the subject matter of regulation of imports into the country is a matter included in List I of Schedule VII of the Constitution, and therefore, within the exclusive jurisdiction of the Union Government, and the legislative power of the State with which its executive power is co-extensive, does not extend to the subject of regulating imports into the country. The State Government, in the purported exercise of its executive power, constituted a committee to deal with the distribution of raw materials like copper, Zinc, lead, stainless steel etc., and to take effective steps to put down the malpractices if any, on the part of the quota holders, and to ensure that raw materials are allotted with due care to the genuine users. The same subject matter as is contained in that order is dealt with by the Act of the Central Government, the Order made thereunder, and the regulations contained in the Import Policy Book. The regulations of imports and the power, to either suspend or cancel licenses, or to debar the licencees from receiving licences, are entrusted to the Central Government and the authorities mentioned in the Import (Control) Order.

What the State Government has done by the constitution of the Committee is to encroach or trespass into a field exclusively within the jurisdiction of the Union Government. By the device of appointing the Sponsoring Authority as a member of the Committee and conveying the decisions of the committee through the conduit pipe of Sponsoring Authority, the State Government has attempted to do indirectly what it cannot do directly. It is a well-known maxim of the Constitutional law, that one cannot do indirectly what he cannot do directly. We are, therefore, clearly of the opinion that the Government Order dated 29-3-1963 bearing No. CI. 101 GCS. 1963 is clearly ultra vires of the powers of the State Government, and that all action taken by the Committee constituted under that order is illegal, without jurisdiction, and null and void.

(15) It is admitted in the counter-affidavit filed on behalf of respondents 1 and 2, that respondent 1 has accepted the decision of the Committee and made his recommendations on the basis of the said decision. When an authority exercises his jurisdiction under a Statute, he has to exercise his own individual judgment or discretion as the case may be. He cannot adopt the decision of any other body as his own. Therefore, in law, there is no disposal of the applications of the petitioners by respondent 1 and respondent 3.

(16) The instant case is one where there has been an encroachment by the State Government on the exclusive field of action of the Central Government. The plea of bar of alternate remedy of appeal raised by the learned Government Pleader has no substance, in our opinion. As already held by us, the constitution of the Committee is a device by the State Government to exercise the power of distribution of import licences when it has no such powers. The appeal provided against the refusal to grant licences is not an effective or adequate remedy in the circumstances of those cases.

(17) The authorities exercising the powers of regulation of control of imports should remember that the petitioners, as citizens of India, have their fundamental rights guaranteed under Article 19 of the Constitution. The right to carry on their trade or profession could be regulated or controlled only in accordance with law, and further they are entitled to equality of treatment. The Import (Control) Order has made provisions for debarring the applicants for licences, where misuse of licences are established, but before such action is taken, the parties are entitled to a hearing and they cannot be condemned without being heard.

The authority to debar an applicant for licence from obtaining any further licences for imports, is not the State Government or the first respondent under the Act and the Order. The sponsoring Authority, after enquiry, has to answer the questions which he is required to answer in the form prescribed for issue of Essentiality Certificates. On a consideration of the certificates issued by the Sponsoring Authority, it is for the licensing authority to decide whether an applicant should be issued any licence. Under the scheme of the Import Control Regulation, the Sponsoring Authority has not been conferred any power to forward only the application for licence without the Essentiality Certificate. The result of the action of the first respondent in this case is that, he has debarred the petitioners from obtaining import licences, which repentant has no jurisdiction to do. Therefore, in our opinion, the petitioners are entitled to succeed in these writ petitions.

(18) We consider the question whether it would serve any purpose to issue a writ in favour of the petitioners, when the period of licensing in question has expired. But we were informed by Sri. B.S. Keshava Iyengar, learned counsel for respondent 3, that though normally a licence for April-September 1963 cannot be issued beyond 31-3-1963, so far as the applications pertaining to stainless steel in respect of April-September 1963 period are concerned, as the applicants are not at fault, licences can be issued even beyond the date. He produced before us the communication received by him to that effect from the third respondent. Petitioner had moved this court before issue of the licences to the parties recommended by the Committe through respondent 1, and this court by this interim order made immediately after the admission of the writ petitions, had directed the third respondent to suspend the consideration of the recommendations made by respondent 1 for issue of licence for import of stainless steel for Aril-September 1963 licensing period, until further orders of this court. In these circumstances, it is open to us to issue a writs prayed for eventhough the licensing period has expired.

(19) For the reasons already mentioned, the duty of respondent 1 is to forward the applications with the Essentiality Certificates in accordance with paragraphs 41 to 46 of the Red Book, and it is the duty of respondent 3 to dispose of the said applications in accordance with law. It would be the duty of respondents 1&3 to ignore all instructions or advice or decisions of the Committee constituted by Respondent 2. We, therefore issue a writ in all these writ petitions quashing the impugned orders of rejection passed by Respondent 3, and further directing him to return all the applications to respondent 1, and respondent 1 is directed to forward the said applications with the Essentiality Certificates in accordance with the instructions contained in Paragraphs 41 & 46 of the Red Book, after exercising his own independent judgment uninfluenced by the decision of the Advisory Committee and thereafter, respondent 3 will expeditiously dispose of the said applications in accordance with law. Respondents 1&2 will pay the cost of the petitioners in these writ petitions. Advocate's fee Rs. 100/- in each of these petitions.

(20) Petitions allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //